by Julio Gonzalez, M.D., J.D.
Once again, the U.S. Supreme Court is being tasked with tackling the most significant of societal issues: our freedom to worship.
This time, the argument is embodied in The American Legion v. American Humanist Association. Familiarly enough, the legal action pits the American people’s abilities to have a longstanding religious symbol remain in the public square against those of secular activists to have them forcibly removed.
The present controversy involves a cross that sits at the center of an intersection in Bladensburg, Maryland dating back to 1922 when local residents set out to build a structure honoring 49 local soldiers who died serving the United States in World War I. The plan called for the construction of a 40-foot tall cross as homage to the fallen heroes.
The Peace Cross, as it eventually came to be known, was completed in 1925, where it has stood as a symbol of the city’s reverence and respect for those who made the ultimate sacrifice for our great country. As the nation’s history progressed and America suffered through other conflicts, the Cross served as a natural gathering place to honor the fallen heroes from World War II, the Korean War, the Vietnam War, and Gulf Storm, among other conflicts.
As things progressed, Bladensburg grew, and the property upon which the Peace Cross stood came to rest at the intersection of multiple growing thoroughfares. Eventually, the state bought the land upon which the Cross stood in 1961, instantly transforming it into the public domain.
Despite the change in the Peace Cross’s status, there was still no objection to its continued presence; that is until the American Humanitarian Association came along.
The Association is made up of a group of individuals who claim to be offended by the Cross’s presence and want it removed. Its argument is that the Cross represents an unconstitutional intermingling between church and state, since, according to the Association, its presence on public land represents the adoption or approval of religion by the government.
In keeping with its strong objection to the Peace Cross, the Association, along with a group of local residents, brought an action against the Maryland National Park And Planning Commission to have the cross removed. The Planning Commission fought back and was eventually granted summary judgment by the district court and told that the Cross could remain. The case was subsequently appealed to the Fourth Circuit, which disagreed and ordered that the Cross be removed. The case is now being argued before the Supreme Court.
The Peace Cross case is a manifestation of the many problems of American jurisprudence in the way it handles cases of religious freedom.
The issue of public worship and respect for our religious freedoms is of elemental importance to all Americans. Religious liberty is at the very root of the nation’s foundation, and its scope and ramifications are fundamental to what it means to be human. Without the direct relationship between our Creator and each one of us, there is no limit to the intrusion government can theoretically have upon the individual. In fact, the only factor placing a limit upon government’s authority over each person is the individual’s greater allegiance to God. Absent this, government may logically run rampant over man.
It is for this reason that the acknowledgment of man’s divinity is so important in a democratic society as it is a constant reminder that both government and man are limited in their scope and power by a greater being, our Creator. Conversely, removing such reminders, like the Cross, serve to diminish the role of religion and worship in people’s daily lives and makes it that much easier for government to intrude upon our freedoms.
Sadly, whereas symbols like the Peace Cross were rarely disturbed during the nineteenth century, beginning in the middle of the twentieth century, they were openly assaulted, not only culturally, but by jurists and advocates.
One of the defining moments of the assault came in a case called Lemon v. Kurtzman involving a state’s ability to apply tax money in support of private schools, many of them religious. Here, the Court prohibited such an association as an intrusion upon the wall of separation between church and state. More importantly, the Court created a three-pronged test it would apply in order to determine whether an action or a law offended the Constitution. In short, the Court said that in order to have a law stand constitutional scrutiny related to religious freedom, the government would have to show three things: 1) a secular purpose; 2) that the law or act did not act principally to advance or inhibit religion; and 3) it did not create an “excessive entanglement with religion.”
Under these requirements, secularists have met with great success in attacking public expressions of worship, religious symbols, and prayer. Since the Lemon test, secularists have been able to force courts to order the removal of crosses and Ten Commandment tablets from public lands, prevent prayer in schools, keep people from praying at commencement ceremonies, and erase Christmas symbols from municipal seasonal celebrations. If your city no longer calls its December tree a Christmas tree, or now calls its Christmas parade a Holiday parade, there is a big chance it is due to the fear of the Lemon test.
But the Lemon test has not escaped criticism. Many, including renowned law professors and jurists have argued that the test allows absurd outcomes and does not properly reflect the wishes of the American people. Some have even called for the test to be displaced. In fact, in a case questioning whether the Ten Commandments should be removed from the Texas Capitol, Justice Stephen Breyer opted not to use the test. In upholding the ability of the tablets to remain, Breyer suggested an approach different from the one used in Lemon. Breyer acknowledged that the Ten Commandments were openly religious, but despite that, he maintained that the tablets should remain because it was “part of what is a broader moral and historical message reflective of a cultural heritage.”
The fact is that if Breyer had employed the Lemon test, his conclusion would likely have been opposite of what he felt was the more correct posture, and we would have witnessed yet another situation where religion and religious freedom would have been beaten down.
Enter the 2018 conservative Supreme Court. It is interesting that the Supreme Court decided to hear the Peace Cross case. Indeed, the lower court applied the Lemon test and arrived at the conventional position. The Supreme Court could have passed on this case and let it stand. But it did not.
The fact that the Court opted to hear this case is an opportunity for it to enter the arena of religious freedom and religious worship. What the Court actually does with this case, of course, remains to be seen. In the end, it could use the Lemon test and provide further clarification on its application.
It could, on the other hand, do something truly innovative. It could review the assault that has taken place upon religious freedom with the Lemon sword and take the future of the First Amendment in a more permissive direction.
For our posterity’s sake, let’s hope that it does the latter.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.